Steward v. Gilmore
| Decision Date | 05 April 1996 |
| Docket Number | No. 93-3460,93-3460 |
| Citation | 80 F.3d 1205 |
| Parties | Levie STEWARD, Petitioner-Appellant, v. Jerry D. GILMORE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 253--Ann Claire Williams, Judge.
Thomas J. Cunningham (argued), Smith, Williams & Lodge, Chicago, IL, for Petitioner-Appellant.
Bradley P. Halloran (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
Before BAUER, CUDAHY, and RIPPLE, Circuit Judges.
Levie Steward appeals the denial of his habeas corpus petition, in which he alleges ineffective assistance of trial, appellate and post-conviction counsel; invalidity of his guilty plea; cruel and unusual punishment; and judicial misconduct. From our review of the record, it appears that Steward may have had a colorable claim of ineffective assistance of counsel for failure to raise a patently meritorious state law claim. However, because this claim was not brought to the attention of the state courts, it may not be considered here. Therefore, we affirm the judgment of the district court with respect to the issues raised by Steward there.
Steward's case has followed a long and tortuous path through the state courts and indigent defense system. On November 29, 1979, Steward pleaded guilty to murder, armed robbery and armed violence. He was Extended Term. (a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized ... for the class of the most serious offense of which the offender was convicted unless the factors in aggravation ... were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following:
represented in those proceedings by a public defender, George Miranda. On January 28, 1980, Steward was sentenced to an eighty-year "extended sentence" pursuant to Ill.Rev.Stat. ch. 38, para. 1005-8-2 (now at 730 ILCS 5-8-2 with modified minimum and maximum sentences)
(1) for first degree murder, a term shall be not less than 40 years and not more than 80 years;
...
(b) If the conviction was by plea, it shall appear on the record that the plea was entered with the defendant's knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant should not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice.
(Emphasis added.)
Before entering his guilty plea, Steward was not admonished by the trial court that an extended term sentence was a possibility in his case. In fact, Steward contends that Miranda told him that the prosecution and the court had agreed to impose a twenty-year sentence on him in exchange for his guilty plea.
On February 27, 1980, Miranda filed on Steward's behalf a notice of appeal from Steward's conviction and sentence. Pet.App. at A-43. On the same day, in response to a January 30, 1980 letter from Steward, the State Appellate Defender's office filed a motion in the trial court to vacate Steward's guilty plea. Pet.App. at A738. The motion was filed without specifying the grounds on which Steward intended to rely, stating that an amended motion would be filed after counsel had been appointed. No amended motion was ever filed. A hearing was held on the motion on March 10, 1980, at which the motion was summarily denied. Steward was neither present nor represented at the hearing and no argument was presented on his behalf on the motion. Pet.App. at A940 & 47. Steward filed a notice of appeal from the denial of his motion on March 20, 1980. In the notice of appeal he stated that "Miranda told [him] that the court and the State[']s [A]ttorney had agreed to give [him] a 20 year sentence if [he] did not say anything during [the] proceeding." Pet.App. at A-44. On July 7, 1981, Steward, with the assistance of the State Appellate Defender, moved the Illinois Appellate Court either for permission to file a late notice of appeal 1 or to remand the case to the trial court for rehearing of the motion to vacate the guilty plea. The motion also asked for the appointment of counsel to represent him at rehearing. The Illinois Appellate Court granted the motion. Pet.App. at A-45, 49.
At a hearing on October 23, 1981, both a motion to vacate Steward's guilty plea and a motion to reduce his sentence were presented. Marianne Jackson was appointed to represent Steward at that hearing. Jackson focused her argument on the request for a reduction of sentence. The limited colloquy regarding the motion to vacate the guilty plea proceeded as follows:
Ms. Jackson: I would bring to the Court's attention the fact that [at] the time Mr. Steward entered the guilty plea he was not advised of the fact that there was a possibility an enhanced sentence would be imposed.
The Court: He was told what sentence he was going to get, wasn't he?
Ms. Jackson: No, your Honor.
The Court: Wasn't this a plea of guilty?
Ms. Jackson: Yes, it was, a blind plea.
The Court: Okay. Fine.
Mr. O'Connor [State's Attorney]: Judge, if I may put one thing on the record, in this particular case the Defendant was advised that the death penalty was one of the possible sentences. [Mr. O'Connor then proceeded to cite cases in support of the argument that the availability of the death penalty obviated the need to admonish a defendant regarding the maximum possible term of imprisonment.]
Hearing Tr., Pet.App. at A-55-56.
When the motion to vacate the guilty plea was denied, Jackson filed a notice of appeal. Pet.App. at A-59. On November 17, 1983, Jackson informed Steward that she saw no basis on which he could withdraw his plea. Pet.App. at A-62. She later filed an Anders brief and was granted permission to withdraw from the case. Pet.App. at A-63. In the Anders brief Jackson argued that, since Steward was admonished as to the possibility of a death sentence, he was not prejudiced by the failure to notify him of the extended sentence. Anders Br. at 14. Nowhere in her argument of the motion or in the Anders brief did Jackson raise the statutory directive that, if a defendant were not given prior notice of the possibility of an extended term, "the defendant shall not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice." Ill.Rev.Stat. ch. 38, para. 1005-8-2. Indeed, in a letter to Steward, Jackson wrote:
[Y]ou have no basis for withdrawing the plea. There is nothing in the record to remotely suggest that the plea was involuntary. You should understand that one does not have a right to withdraw a guilty plea. There must be something you can point to, to suggest to the Court that it was error to accept the plea. Unfortunately, there is nothing in your case to help you.
Pet.App. at A-62.
Steward made no further pro se filings in the matter and the denial of the motion to vacate the plea was affirmed by the Illinois Appellate Court on August 13, 1984.
On January 27, 1987, Steward submitted a petition for post-conviction relief pursuant to Ill.Rev.Stat. ch. 38, para. 122-1 et seq. (1985). Pet.App. at A-64. The original copy of this petition was apparently misplaced and on April 28, 1987, Steward was asked to file another copy. Pet.App. at A-73. In his pro se post-conviction petition, Steward raised two claims: First, he argued that the failure of the trial court to admonish him about the possibility of an extended term sentence prior to accepting his guilty plea violated his right to procedural due process. He contended that the failure to notify him of the possibility of an extended sentence violated Illinois Supreme Court Rule 402(a)(2) () and rendered his guilty plea not knowing and intelligent. Second, Steward argued that he was denied effective assistance of counsel when his trial attorney also failed to advise him of the possibility of an extended term sentence. He stated that he would not have pleaded guilty had he been aware of the possibility of the extended term sentence.
Public defender Allison Davidson was appointed to represent Steward in the post-conviction proceedings. Davidson filed a supplemental petition which stated: Petitioner alleges three constitutional violations:
(1)--The trial court failed to advise Petitioner that he was eligible for an extended term sentence--etc.
(2)--Ineffective assistance of trial counsel in that Petitioner was not advised that he was eligible for an extended term sentence--etc.
(3)--Trial Court failed to comply with Chapter 38, Section 1005-8-2(b) Ill. Rev. Statutes--etc.
Supp. Record, Exh. A.
The supplemental petition did not quote the statutory language requiring admonishment of the possibility of an extended sentence nor explain how a violation of the state extended term statute might implicate the federal constitution. The petition, however, did cite to People v. Hoyer, 100 Ill.App.3d Steward filed a notice of appeal on May 12, 1989, apparently with Davidson's assistance. Pet.App. at A-79. Davidson informed Steward that he would be notified "in due time" of the identity of the attorney handling the appeal. Pet.App. at A-80. In September 1990, Steward wrote to the public defender's office requesting information about the status of his appeal. Pet.App. at A-81. On October 1, 1990, he was informed by the Illinois Appellate Court that his appeal had been dismissed for want of prosecution because no record had been filed. Pet.App. at A-82.
418, 55 Ill.Dec. 814, 426 N.E.2d 1139 (1981), for the proposition that under Illinois law "failure to admonish a defendant of the possibility of an extended term precludes the...To continue reading
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